Assault vs Defense of Property

[metaethic]

My question involves police conduct in the State of: New Mexico

I was told by a law officer that if you carry a gun and confront someone outside your home stealing your property the person committing the thief can successful press charges against you for assault even if you did not point the firearm at them or threaten them. Is this correct? What are the boundaries of what you can do to protect your property? Thanks.

[Mr. Knowitall]

How should we imagine that this person is going to know that you had a gun?

If you want to research the laws of your state for random hypothetical situations, the statutes are here and a considerable amount of case law can be found here.

[jk]

I suspect you might be referring to a situation that is often called brandishing a firearm. That is where a person, even if not actually pointing the weapon or even holding it presents it in such a manner as to specifically make it known they are carrying a firearm. As an example, if a person were to confront the trespasser while carrying a weapon hidden by a coat or shirt and makes the effort to expose it would be considered brandishing the firearm. Since there is an implied threat, in some cases, that could be considered an assault.

I have not researched this in terms of Arizona law though. Refer to the links Mr. K has provided for specific applications.

[Mr. Knowitall]

If we're talking 'brandishing', it would appear to implicate the bold-faced language:

Assault consists of either:

A. an attempt to commit a battery upon the person of another;

B. any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; or

C. the use of insulting language toward another impugning his honor, delicacy or reputation.

Whoever commits assault is guilty of a petty misdemeanor.

[metaethic]

This was not a random hypothetical situation someone was stealing my property and I confronted them with a firearm. When the police arrived they told me the best course of action was to agree not to press charges for theft and they would get the thief to sign a form saying they will not press charges for assault.

[jk]

so, what was the basis for the complaint that you threatened him?

[metaethic]

That he could feel threatened by the fact I had a gun.

[jk]

That he could feel threatened by the fact I had a gun.

generally, simply having a gun is not in itself adequate reason for a criminal charge such as you are facing.

B. any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; or

reasonably believe. That is more than some guy going, "he had a gun. I was afraid he was going to shoot me". You have to act in a way he could reasonably conclude you might shoot him.

[cmre3456]

I see I'm late here; please allow me to weigh in anyway?

I know of no state which allows the use of a gun to protect property. Life is considered too valuable when compared to property. Many states allow the use of a gun on an intruder in a dwelling, and some in a personally owned business, but this is not to protect property. It is to protect the occupant(s). In many states the mere presence of the intruder, whether he's armed, is a presumption of danger and the occupant isn't required to take the time to make that determination. Seconds count.

New Mexico allows "open carry" (exposed) of a weapon without a license, even by non residents. Simply having a gun in a holster is never OF ITSELF a threat. Certainly your words or actions such as loosening a holster strap or drawing the gun could be considered a threat.

In most states if there is someone outside your building doing no good, you are best to stay inside, dial 911 and prepare to defend against possible invasion. If you were to shoot someone outside regarding property, you'd probably go down for some level of at least manslaughter. If you lose possessions to a thief, you are far better off kissing them goodbye than you are going through the legal mess of having a gun issue against you.

I carry concealed and that solves almost all problems, unless that horrible day comes where I have to shoot someone because "I or another person, even a complete stranger, are in immediate danger of death or serious bodily harm." Lordy I hope that never happens. Never. The legal aftermath may go smoothly if it's public with enough witnesses, or it may go horribly. That's not to mention the nightmares after shooting another human being.